In particular this page provides an index to posts on (a) the closing arguments of the lawyers for both the prosecution and defence; and (b) the applications for retrial following the publication of the skype/e-mail correspondence (which resulted in the resignation of the chairman of the tribunal), the prosecution responses and the tribunal orders.

Notes of proceedings are based on detailed notes taken at the tribunal. They are not the official record, though the tribunal orders are direct copies of the original order. There are a few posts that are comments, and these are clearly marked as such

On 28 February, Sayedee was convicted on 8 counts - and received a death penalty in relation to two of them.

[If you find any broken or inaccurate links, or any other inaccuracy, please leave a comment)

Post Skype retrial applications
(to see miscellaneous posts concerning the publication of the skype conversations between the chairman of the tribunal (now retired) and an ex-patriate lawyer, see the bottom of this page)
17 Dec - Sayedee privileged communication

Saturday, March 23, 2013

This is a copy of the order issued by the Tribunal following the application by the defense to review a previous order of the court which held that it would not take cognizance of any of the Skype/e-mail communication involving the chairman and an expatriate lawyer, and would not order a retrial in the cases of Sayedee, Nizami, and Azam. (see here and here for arguments on this)

Today is fixed for order on three review applications. These 3(three) review applications presented by accused Professor Gohlam Azam, Motiur Rahman Nizami and Delowar Hosain Sayedee to review the order dated 03.01.2013 passed by this Tribunal rejecting the applications filed under Rule 46A of the ROP for recalling orders of taking cogruzance and framing charges and for full and complete re- trial of the cases. Since, the subject matter of the review petitions is almost similar to each other, all those were heard together for disposal.

Mr. Abdur Razzak, the learned Senior Counsel of the defence, contends that the orders passed by the Tribunal on 03.01.2013 had prejudiced the accused as the Tribunal opined that the skype conversations and E-mail communications between former chairman and Dr. Ahmed Ziauddtn, a Bangladeshi national living in Brussels, are illegal documents. Unless it has been proved after taking evidence by the appropriate court of law, this Tribunal does not have jurisdiction to say that such hacked e-mails and recorded conversations are illegal. By the order of this Tribunal dated 3rd January, 2013 injustice had been made against the accused, therefore, the question of review has been arisen and it can be only cured by allowing the present review applications. By citing decision of 2(two) cases namely Prosecutor-vs-Mico Stanisic and Stojan Zapljanin and Prosecutor-vs- Radoslavbrdjanin, Mr. Razzak argues that the admission of an intercept does not depend on whether it was obtained legally or illegally under the domestic law inforce at the time intercept was recorded. The intercepts would be envisaged to have probative value if the Tribunal feels that those documents .are sufficiently reliable, authentic and relevant to the issue in the case. The reliability, authenticity and relevancy seem to be present in the instant issue. He finally submits that the Tribunal has wide power and scope to allow review petitions for the interest of ensuring fair trial

On the contrary Mr. Mir Iqbal Hossain, the learned Prosecutor has argued that there is no scope to review the orders passed by this Ttibunal on 03.01.2013 as the Tribunal elaborately discussed on the issue stating the reasons for not allowing the recall of the orders of taking cognizance and framing charges. He further submits that the defence counsels had made similar arguments in disposal of the earlier applications. Mr. Syed Hyder Ali, the learned Prosecutor, has also argued that the defence has failed to show that from where and by whom such alleged e-mail communications and skype conversations were recorded and hacked. So such documents are absolutely unsafe and have no probative value and also illegal as per Information and Communication Act, Technology 2006.

We have heard both the parties and perused the review petitions along with order dated 03.01.2013 therein, wherefrom it transpires that earlier the defence Counsels on behalf of the aforementioned accused preferred 3(thee) applications under Rule 46A of the ROP, 2010 for recalling the orders of taking cognizance and framing charges in the instant cases on the ground that the e-mail communications and skype conversadon between former Chairman Mr. Justice Md. Nizamul Huq and Ahmed Ziauddn, in collusion with each other, were hacked and recorded. Subsequently, part of which was alleged were published in the local and international media that causes seriously prejudice to the right of accused to ensure fair trial as guaranteed in Section 6 (A) of the ICT Act, 1973. Those applications were heard at length earlier and subsequendy, were reiected by the Tribunal figuring elaborate reasons therein. Against which the present 3(three) review petitions have been presented by the aforesaid accused on the plea that unless the alleged skype conversations and e-mail communications between former Chairman and a so called expatriate legal expert Ahmed Ziauddin eaked out in the media, are being declared illegal documents by adjudication in the appropriate court of law, the Tribunal should not hold that-e-mail communications and transcript of Skype conversatiorns are the product of hacked e-mail account and illegal tape recording of private conversation.

By the order dated 3rd January 2013 we had expressed our view on those applications after a long hearing that took no cognizance of the dossier annexed, by the defence regarding the skype conversation and email communications between former chairmen and Mr. Ahmed Ziauddrn as the same brought to the notice of the Tribunal after hacking unlawfully. Former chairman, before his stepping down from the Tribunal, by the order dated 06.1,2.2072 admittedly disclosed that his email communications and conversation had been hacked prior to his knowledge, consent or approval. So, there is no reason to disbelieve the statement of the former chairman as to alleged hacked documents. Therefore, nobody can surely say that the skype conversation and hacked e-mail communications had been obtained legally. The disclosure of its source is yet being detected and claimed to be done in accordance with law.

Now, we further opine that hacking and recording of personal conversation and e-mail communications without permission of the person concerned is inevitably the outcome of an offence. Unauthorized entry into private conversation is a clear violation of privacy rights as guaranteed in out constitution. None is allowed to hack e-mail communication or tecord conversadon of any private individual under law of the land. Stolen property may be admissible in evidence, as when it is being brought to the notice of the authority concerned from where or from whom it has come. But in the instant case, it does not emerge that from where it was recorded and at whose initiative it was published in the daily news paper. So the question of reliability, authenticity-and relevancy does not arise, therefore, it has no probative value at this stage. It is surprising that when the defence filed review applications for re-calling the orders of taking cogntzance and framing charges of the cases, pending disposal of the same in the tribunal, they preferred six applications for re-calling some witnesses, exhibiting some dossier of skype conversation and e-mail communication and extending duration of time to sum up the case of accused Delowar Hossain Sayedee, which appear to be contradictory initiatives to each other taken by the defence. Moreover, the applications for review do not disclose discovery of any new fact or error on the face of the orders which are basic requirement for prefering a review. Therefore, we do not find anything to interfere with order dated 03.01.2013 of this tribunal. Hence, the review applications do not have any merit whatsoever for consideration. Having regard to submissions and reasons stated above, all the three review applications are hereby rejected.

One of the lawyers read out the key parts of the written application, which is here.

Abdur Razzaq made the following comments, summarized below

- Normally the scope of a review application is very narrow. E.g. in section 114 and Order 47, Rule 1 of Code of Civil Procedure the test is ‘error apparent on the face of record’. But in Rule 26(3) of the Rules of Procedure of ICT the scope of very wide. You have power to review ‘in the ends of justice’. It is really very wide power.

- The word ‘justice’ is not an ornamental word. So if you think that some injustice has been done you have ample power to cure it by reviewing the impugned order. I submit there are strong grounds for review. The accused are denied justice and as such the impugned order rejecting our application should be reviewed in the interest of justice.

- In our retrial application we showed you the Skype and email communications between the former Chairman and Dr. Ahmed Ziauddin. We showed you how the Dr. Ziauddin was helping the prosecution and the former Chairman at the same time. But in the impugned order you have said that you would not look into these Skype and email communications for three reasons (1) these are hacked materials, (2) these materials are illegally obtained and (3) these materials cannot be used as they are not admissible. I will deal with them one

(1) Hacked material
- how can you say that these are hacked materials? Do you have any evidence of this? This is purely a question of fact. Only a cyber Tribunal under the Information and Communication Technology Act 2006 is competent to come to this finding after considering relevant evidence. How can this Tribunal say that the skype and e-mail communications are hacked without any finding of fact? If it was recorded and revealed by any of the parties concerned i.e. the former Chairman and Dr. Ziauddin then it is not hacked. If they are recorded with their consent then also it cannot be said that they were hacked. Without any evidence you cannot just presume that these materials were hacked.

Chairman stated that the former Chairman in his order dated 6th December 2012 has said that his computer, email and Skype account had been hacked. This is how we thought that the Skype and email communications between the former Chairman and Dr Ziauddin must have been hacked.

Razzaq then asked whether any evidence that it was not recorded by Dr. Ziauddin or by anyone with his consent. There is no enquiry into this. You cannot just presume that these materials were hacked. These are now available in public domain. The Economist and the Daily Amar Desh and some other national daily newspaper has also published part of it. There is no evidence before you to find that these materials were hacked.

- In the impugned order you have said ‘alleged’ hacked materials. How can you say that these are ‘alleged’ materials? The former Chairman did not deny any of these communications. In fact in his order dated 6th December he admitted having Skype and email communications with Dr. Ziauddin. He resigned admitting his liability. Dr. Ziauddin also expressly admitted these Skype and email communications in his press statement published in the bdnews24.com on 19th December 2012. In fact he felt proud for being able to assist the former Chairman and the prosecution in this war crime issue. In that press statement he said that he would continue assisting this tribunal and the prosecution. So the parties concern have admitted these communications

- But I want to be fair with Dr Ziauddin. In his press statement he said that there were evidences of manipulation in his Skype and email communications. But until today Dr Ziauddin could not show a single event as to which part was manipulated. You may recall that the Daily Amar Desh has published this without any change. You have admitted this in the impugned order also.

Mr. Justice Jahangir Hossain asked why Daily Amardesh so many headline and sub-headline in their report. Was there any mala fide intension?

Razaq said that he did not know. It appears that the Skype materials are so huge that they had to use sub-headings. You should remember that Amar Desh has published it in public interest.

(2) Obtained Illegally– this Tribunal is not competent to say that these materials were recorded illegally. According to the Information and Communication Technology Act 2006 a Cyber Tribunal is to decide on illegality of any such materials. Without such finding from a competent authority how this Tribunal can say that these materials were recorded illegally. Your lordships may have respect to the former Chairman. But you must act in accordance with law. Only because the former Chairman has said that it was hacked and illegally recorded, you should not accept it. You should look into the matter in great detail.

- In the impugned order you have praised The Economist for publishing only part of these materials. On the other hand you have criticized the Daily Amar Desh for publishing full. But in fact the Economist has made serious criticism of the flawed process of this tribunal. Let me show you. Amar Desh only reported on the Skype Conversations. They did not report on the 230 emails of the former Chairman and Dr. Ziauddin. But the Economist reported on both the Skype and the email communications.

- In its report dated 8th December 2012 titled ‘Discrepancy in Dhaka’ there were discrepancy in the statements of the former Chairman. They reported that on 5th December 2012 the former Chairman denied with the Economist over phone any communication with Dr. Ziauddin. The former Chairman was reported to have said that as a judge of the Supreme Court he do not talk about a pending case with anyone, not even his wife. But on the next day he issued a show cause notice upon the Economist admitting email and Skype communications with Dr. Ziauddin. He also passed a restraining order so that the Economist cannot publish those materials. In that report the Economist has raised some serious question about this process. They have revealed that the integrity of the former Chairman was doubtful. Since you have praised the Economist in the impugned order, you should not disbelieve this article. The Economist being fair did not published the Skype and email communication at that time and they investigated the matter.

- After investigation on 15th December 2012 the Economist published a summary of the 17 hours Skype Conversation and 230 emails between the former Chairman and Dr. Ziauddin. This is a three full page report in a worldwide reputed journal like The Economist. They have revealed that the former Chairman was regularly discussing about the cases in the Tribunal with Dr. Ziauddin and was taking his assistances. The orders of the tribunal were being drafted by this Dr. Ziauddin who was also helping the prosecution at the same time. It was reported that though the former Chairman denied working on Sayedee judgment in October 2012, the Skype and email communications revealed that Dr. Ziauddin sent him structure of conviction judgment on 14th October 2012 though the defence case was not closed until then. The Economist concluded that ‘“These concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.”

- How can you say in the impugned order that the Amar Desh published the Skype materials unethically when you have praised the Economist for doing the same thing? In fact the Economist was more critical. They reported on the 230 email also. If you believe the reports of the Economist then you should order for a retrial.

- The Daily Amar Desh only published tips of the ice berg. But the Economist has published the summary of the 17 hour Skype conversation and 230 email communications between the former Chairman and Dr Ziauddin. This report clearly show how the Accused were prejudiced. The prosecution witness was seen to be tutored by the former Chairman and Dr. Ziauddin. The formal charge and the cognizance order was also drafted by Dr. Ziauddin in PGA case. The former Chairman ordered to reduce the defence witnesses on the instruction of Dr. Ziauddin. They were conspiring to convict all the Accused. How can you imagine these in a civilized world? This is not a disputed question of fact. The parties of these communications have admitted this. There is no denial from them. The Economist acted only in public interest. Now I leave it to your good conscience.

- In the impugned order you have decided to take the burden of the former Chairman on your shoulder. This is not in the interest of justice.

- In Sayedee case the chairman said that you with other member Mr. Zahir Ahmed have drafted the charge framing order. If this was the case, then why it was sent to Dr. Ziauddin for final approval. The email clearly show that the charge framing order (indictment) was drafted and sent by Dr Ziauddin as email attachment on the day before it was delivered in the open court. In PGA case all the formal charges were drafted and sent by Dr. Ziauddin. This is also evident from the email communications. The Skype communications clearly show that the prosecution witness, Sultana Kamal was being tutored.

Chairman – a party has a right to test its witness. There is nothing wrong in it.

Razaq: if you want to say that the former Chairman can tutor a prosecution witness then I have nothing to say. They were deciding who could be the next prosecution witness. They were suggesting how to fill up gaps in the prosecution case. Can they do this? Even then you will show that the trial was not vitiated? This is a gross example of unfairness. This is why we have prayed for a retrial. This is a very reasonable prayer. We should have prayed for staying the proceeding because the whole process was contaminated by the government. There is clear evidence of executive interference in the Skype and email communications of the former Chairman and Dr. Ziauddin.

- In the impugned order you have said that there is no express provision to hold a retrial. You have also held that inherent power of the Tribunal cannot be exercised unlcess there is a express provision. Then you hold that in Section 6(6) of 1973 Act in case of ‘any’ change in the member of the tribunal the remaining judges are not bound to rehear the evidence. Your interpretation of section 6(6) is clearly mistaken. The section used the word ‘merely’ not ‘any’. Section 6(6) even in case of mere change you have discretion to rehear the evidence. There is no provision in the 1973 Act about what would happen when the Chairman resigns accepting wrongdoing. So this is the perfect case for your to exercise you inherent power under Rule 46A for ends of justice. No one will be prejudiced if you order for a retrial. But, I understand, only some executive will not be happy by such order as they want expeditious judgment.

(3) Admissibility of illegally obtained evidencein the impugned order you hold that we could not show a single decision to support that the illegally hacked materials are admissible as evidence. But in other place of the order where you recorded my submission on the retrial application you mentioned that I relied up at least ‘48 DLR 86, (1994) Supreme Court cases 632 (R.Raja Gopal Vs. State of T.N. India) and other citations’ to support this point. This is self contradictory and an error apparent on the fact of the record. We showed you decisions one from Privy Counsel othes are reported in 1955 1 ALL ER PC 237, AIR 1974 SC 348 and 48 DLR 108.

- We are not saying that these materials were hacked or illegally obtained. We are submitting that even if these documents were illegally obtained they are admissible. The only test is relevance. If you can see that there are probative value that outweigh prejudicial effect then you should admit these materials.

- In an ICTY Case Prosecutor v Brđjanin –(“Decision on Defence Objection to Intercept Evidence” dated 3 October 2003,) the issue was whether hacked telephone materials were admissible as evidence. After detail discussion of the English law and other international law the trial Chamber decided that they are admissible.

- In another ICTY Case Prosecutor V Mico Stanisic and Stozan Zupljanin – (Decision denying the Stanisic Notion for exclusion of recorded intercepts) the trial chamber passes similar decision in relation of recorded intercepts. \

- You cannot say that the Skype and email communications are hacked or illegally obtained as there is no evidence to come to that conclusion. You cannot say them to be ‘alleged’ materials as they are admitted by the parties. It is now available in public domain. These are admissible evidence. There is no allegation that they were hacked by the accused. So there is no restriction on their use.

- According section 19(1) of the 1973 Act you are not bound by technical rules of evidence. This provision empowers you to admit any tape recorded materials. You have received huge prosecution materials in this way. So you should admit these evidence for having probative value. Despite our serious objection to the 19(2) statements of 16 witness showing you the safe house documents you have received them as evidence in DHS case. Why cannot you take similar approach to the defence documents.

One of the judges said that the tribunal has merely received the 19(2) documents as evidence. We are not saying that we have accepted them to be true.

Razaq said that in the same way you can admit these Skype and email communication. You may finally decide how much credit you want give to them. These documents are admissible. This Tribunal is duty bound to do fair trial. So you should order for a retrial for ends of justice.

Specifically in relation to Nizami, the prosecutor made the following arguments

- The review application is merely repetition of the allegations in the Retrials application. There is nothing new.

- It cannot be said that justice was denied to the accused. Can they make such allegation against the Tribunal?

- In exceptional circumstances these materials may be admitted. The defence need to show that they fall under any of such exceptional circumstances.

- Hacked documents are violative to Article 43 of our constitution that ensures right to privacy of individuals. The Economist has violated these rights. Even the defence counsels have also violated this right since they have presented these hacked materials before this tribunal.

- How far you can use your inherent power. This is not limited upto sky. The power which is not expressly given that cannot be exercised as inherent power.

- There is no scope to review the impugned order.

- The Skype and email communications are being used against the Tribunal.

Prosecution Haider Ali said that he would argue relating to the Sayedee case the following day

1. That on 23rd December 2012 the Accused/Petitioner filed an application for recall of the order dated 3rd October 2011 framing charges against the Accused Petitioner and full and complete retrial of the instant case under Rule 46A of the International Crimes (Tribunals) No. 1 Rules of Procedure 2010(‘RoP’) (hereinafter referred to as ‘the Application’).

2. That the Application was filed following the publishing of reports in the local and international media of hacked Skype and e-mail communications between Mr. Justice Nizamul Haq, the former Chairman of the International Crimes Tribunal-1 (ICT-1) and Dr. Ahmed Ziauddin, an expatriate Bangladeshi based in Brussels, Belgium. It is submitted that these communications are proof of wrong doings by the former Chairman, Dr. Ziauddin, a section of the Prosecution and a section of the Executive and othersto secure conviction of the Accused/Petitioner, seriously prejudicing his right of fair trial guaranteed under section 6(2A) of International Crimes (Tribunal) Act 1973, and under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is bound. The Skype and email communications of the above two persons reveals, inter alia, the following:

(i) The order of framing charge dated 3rd October 2011 was in fact prepared by Dr. Ziauddin and sent to the former Chairman as an email attachment in the evening before it was announced in open court by the former Chairman. (Annexure – E series of the Application);

(ii) The Former Chairman did not carry out his judicial functions independently. He regularly received copies of orders prepared by Dr. Ziauddin and took advice from him, for example, on how the trial process would be concluded within shortest possible time;

(iii) That Former Chairman and Dr. Ziauddin had discussions not only as to who should depose as Prosecution witnesses, but also as to the contents and length of the depositions;

(iv) The Former Chairman and Dr. Ziauddin engaged in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible. Their emails show that Dr. Ziauddin had been preparing judgment for conviction in this case even before the close of the Defence case;

(v) The Former Chairman Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Moreover, Dr. Ziauddin played an important role in advising the former Chairman and a section of the Prosecutors, acting as a conduit for the exchange of information between the Tribunal and the Prosecution;

(vi) The conversations between the former Chairman and Dr. Ziauddin clearly show extensive Executive interference with the process of the Tribunal.

3. That thereafter, the Hon’ble Tribunal heard the Application on 24th, 26th, 27th, 30th and 31st December 2012 and 1st January 2013. Thereafter on 3rd January 2013 this Hon’ble Tribunal passed an order rejecting the Application (hereinafter referred to as ‘the Impugned Order’). On 6th January 2013 the Accused-Petitioner filed an application for certified copy of the Impugned Order and on 07 January 2013 the same was supplied to the Defence.

4. That it is submitted that the impugned order fails to properly consider the submissions set out in the Application and the obvious prejudice this would have on the integrity of proceedings.

5. Accordingly, the Accused-Petitioner files this Application for Review of the Impugned Order under Rule 26(3) of the RoP which is quoted below for ready reference: "The Tribunal, on its own motion or on the application of either party, may review any of its order including the order of framing charge (s) in the interest of justice."

A copy of the Impugned Order dated 3rd January 2013 has been annexed herewith pursuant to Rule 26(4) of the RoP and marked as ANNEXURE – ‘A’.

Grounds for Review:

Admissibility of Hacked Materials:
6. That in the Impugned Order the Tribunal observed that hacked materials are not admissible as evidence until it is resolved who, how and where they were hacked and recorded. The Impugned Order states as follows: “Who hacked and illegally recorded it and when and in which country? All these relevant questions are to be resolved first before we take all those into account.”

7. Further the Hon’ble Tribunal observed that ‘[t]he defence could not produce any document to show that hacked documents are admissible in evidence’. As such the Tribunal concluded that it could not pass any order relying upon the skype and email conversations.

8. It is respectfully submitted that the above observations of the Hon’ble Tribunal are wholly mistaken. It is not correct that the Defence could not produce any supporting arguments and authorities to show that the hacked documents are admissible in evidence.

9. In fact, in the impugned order the Tribunal recorded that the learned Defence Counsel Mr. Abdur Razzaq ‘referred some decisions viz 48 DLR 86, (1994) Supreme Court cases 632 (R. Raja Gopal Vs. State of T.N. India) and other citations’ in support of his contention that the hacked documents are admissible in evidence. The relevant part of the impugned order is quoted below:

“[Mr. Abdur Razzaq argued that] If the hacked documents are considered as illegal even then, those are admissible in evidence in ... public interest and accordingly the Tribunal can exercise its inherent power to ensure fair justice. In support of his contention he [Abdur Razzaq] referred some decisions viz 48 DLR 86, (1994) Supreme Court cases 632 (R.Raja Gopal Vs. State of T.N. India) and other citations.”

10. At the time of hearing of the application the learned Senior Defence Counsel made reference to the cases reported in 1955 1 ALL ER PC 237, AIR 1974 SC 348 and 48 DLR 108 to substantiate the contention that if the evidence is relevant, it is admissible, ‘even if you have stolen it’.

11. The near universal approach adopted by international tribunals and most national (common law) jurisdictions and regional human rights courts confirms that evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which the evidence is obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility. [The Prosecutor v. Brdjanin, Decision on Defence Objection to Intercept Evidence, 3 October 2003, IT-99-36-T]

12. Moreover, it is submitted that the Hon’ble Tribunal has not acted in accordance with Article 19 of the International Crimes Tribunal Act 1973 (as amended) (“ICTA”),which stipulates that the ICT is “not bound by technical rules of evidence” but “may admit any evidence, including reports…published in newspapers, periodicals and magazines, films and tape recordings and other materials as may be tendered before it, which it deems to have probative value.”

13. In fact, under Rule 2(9) Rules of Procedure (hereinafter “Rules”) the Tribunal was mistaken to consider that the skype and email conversations is “evidence” at all. They have not been placed before the Tribunal in relation to matters of fact, but rather demonstrate the conduct of the former Chairman, the Prosecution, the Executive, and third parties in a conspiracy to pervert the course of justice.

14. Rule 46A states that “Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.” It is in the interests of justice that the Tribunal recognizes that the skype conversations and emails have cast serious doubt over the integrity of proceedings in all cases before the ICT-1.

15. Accordingly, there is nothing in the Rules or the ICTA to prevent the ICT-1 from relying on the skype conversations and emails. Indeed, failing to do so would violate the duty of the ICT-1 under Article 6(2A) ICTA to ensure a fair trial, as well under Article 14 of the ICCPR, to which Bangladesh is bound.

16. Further, the Defence refer to The Prosecutor v Jean-Pierre Bemba Gombo, Decision on Admissibility and Abuse of Process Challenges, the International Criminal Court, ICC-01/05-01/08-802, 24 June 2010 para. 204, where it was determined by the Trial Chamber that:

“As to the Court's overarching approach, although the defence must establish, to the civil standard [of proof (a balance of probabilities)], the relevant facts and other necessary matters that underpin the application, in other respects it is not of assistance to describe this exercise as depending on the defence satisfying the burden of proof on the accused's argument. Instead, the result of these applications is simply dependent on a judicial assessment by the Court as to whether the case inadmissible or whether the continued trial is not abusive…”

I.T. Expert of the Tribunal:
17. The Impugned Order referred to an undisclosed opinion of an unnamed I.T. Expert who is alleged to have stated that “skype conversation can be manipulated by omitting a portion of it in order to understand separate meaning as desired by the hacker.” As such the Hon’ble Tribunal held that hacked materials cannot be relied upon.

18. The Defence takes issue with the fact that the Impugned Order specifically states that “the proceeding of taking evidence has taken place in public and transparently”. The Defence submits that by relying on an undisclosed opinion of an undisclosed I.T. Expert the Application hearings were not carried out in public and transparently. The Defence to date has not been provided with a copy of any statement, or been given the opportunity to question the I.T Expert, or indeed to call an I.T. Expert on behalf of the Defence, should they take issue with the Opinion. This is in breach of the right to equality of arms, and the openness of trial guaranteed under section 10(4) of the 1973 Act.

19. It is essential that the name and opinion of the I.T. Expert should now be disclosed so that the Accused/Petitioner is provided an opportunity to challenge the finding which it submits to be incorrect. At the time of the hearing of the Application the Defence Counsel submitted that an Independent Inquiry may be conducted to find out authenticity of these hacked materials. Such an Inquiry should have been conducted by a panel of I.T. experts with representations from the Prosecution and Defence.

20. Moreover, the Defence note that the alleged opinion of the undisclosed I.T. Expert appears to have only gone so far as to say that “skype evidence can be manipulated.” There is no suggestion that the skype conversations in question had in fact been manipulated. The reference in the Impugned Order to the undisclosed I.T. Expert opinion does not mention the email conversations at all.

21. It is submitted that the Hon’ble Tribunal failed to appreciate that the hacked documents are not disputed, rather admitted by the parties concerned. It is stated that at least 22 persons are named in the Skype conversations out of whom 7 are members of judiciary, 6 are prosecutors, 4 ministers and 5 other persons. None of these persons have disputed the skype conversation. The Hon’ble Tribunal did not address the fact that in his order dated 6th December 2012 the Former Chairman has in fact admitted the skype and email communication with Dr. Ziauddin. (Annexure- A of the Application). On 11th December 2012 he resigned accepting the responsibility. Dr. Ziauddin has also admitted the regular communication with the Former Chairman in his press statement published on 19th December 2012 in the bdnews24.com (Annex- I of the Supplementary Statement to the Application filed on 27.12.2012). Further it is to be noted that in their reply to the application the Prosecution did not deny the skype and Email communications between the Former Chairman and Dr. Ziauddin nor did they make submissions on their reliability. Rather the Prosecution prayed that the skype and email conversations should not be used since they were allegedly obtained by applying unlawful means.

22. It is therefore submitted that the impugned order was passed without considering relevant facts, documents and materials before the Tribunal. This resulted in serious prejudice to the Accused/Petitioner and as such the Impugned Order should be reviewed in the interests of justice.

Right to Privacy:
23. In the Impugned Order the Hon’ble Tribual held that “Undeniably the matter of hacking of alleged private communications are illegal recording of conversation itself is a crime and extremely unethical too.” However, the fact that such materials may have been obtained unlawfully, will not affect its admissibility in a court of law.

24. With regard to the issue of privacy it is submitted that the Defence Counsel have relied upon several decisions of the Indian Supreme Court and submitted that Public servants have right of privacy in their private life. But they do not have right of privacy when the question is on discharge of public function. It is submitted that the Judges of this Hon’ble Tribunal are performing public functions and they are not entitled to privacy in discharge of their judicial duty. The requirement of section 10(4) of the 1973 Act that “[t]he proceeding of the Tribunal shall be in public” emphasizes this further. It is submitted that the former Chairman is not entitled to any right to privacy to conspire with a third party, i.e. Dr. Ziauddin, who is also connected with the Prosecution to fast track the case of the Accused/Petitioner, denying his right to a fair trial and to deliver a guilty verdict. If this is allowed in the name of ‘right to privacy’, the public confidence in the fairness of the judiciary will be seriously injured.

25. That furthermore, the Tribunal failed to take into consideration the decision of the Supreme Court of India cited by the Defence which has been reported in (2009) 8 SCC 106 (R K Anand vs Delhi High Court). In the said decision, the Supreme Court of India held that the greater public interest would have to be taken into consideration in determining whether a sting program telecast by New Delhi Television (‘NDTV’) regarding a meeting between Senior Defence Counsel, Special Public Prosecutor and a Prosecution Witness negotiating for the said witness’s sell out in favour of the defence had the effect of undermining the pending criminal trial. The Supreme Court held that the sting program of NDTV was in the larger public interest and served an important public cause and that it in no way interfered with or obstructed the due course of any judicial proceeding, rather it was intended to prevent the attempt to obstruct the due course of law in the BMW trial. It is submitted that the Hon’ble Tribunal failed to appreciate the public interest involved in the publication of the Skype and email communications between Mr. Justice Huq and Dr. Ziauddin. Furthermore, the Hon’ble Tribunal failed to appreciate that the Skype and email communication served an important public cause and were intended to prevent any attempt to obstruct the due course of law in the instant case, and that as such, the same was required to be considered by the Tribunal, irrespective of the manner in which it had been obtained.

26. In reply to the above submissions of the learned Senior Defence Counsel, the learned Attorney General claimed that the ‘right to privacy’ guaranteed under Article 43 of the Bangladesh constitution is not in Indian constitution and hence Indian decisions to limit the right to privacy are not applicable. It is submitted that the learned Attorney General ignored that the Indian Supreme Court has developed the right to privacy of a person though precedent. In India right to privacy is well recognized but subject to reasonable exception referred above.

27. It may be noted here that the Daily Amar Desh is not the only media to publish the Skype and email communications of the former Chairman with Dr. Ziauddin. The renowned English journal The Economist and some other national news papers including the Daily Jugantor has also published part of these communications. The said materials are also available on a European based website (www.tribunalsleaks.be) that reveals how Dr. Ziauddin is able to essentially dictate the whole process to the Chairman of the Tribunal, the Prosecuting authorities and the Government.

28. That it is stated that there is no prohibition or bar in the Information and Communication Technology Act 2006 for using the hacked materials.

29. In view of the above it is therefore submitted that the Hon’ble Tribunal committed an error of law causing a failure of justice by holding that the hacked materials are not admissible in evidence on the grounds that they are obtained in violation of the right to privacy. As such, the Impugned Order is liable to be reviewed in the interests of justice.

Prejudice of the Accused in the Trial by the Former Chairman:
30. That in the Impugned Order the Hon’ble Tribunal found that the proceeding of the case was conducted fairly without any prejudice to any party and as such there is no question of retrial. The Tribunal states as follows:

“Both the parties have been afforded sufficient time they need to examine and cross-examine witnesses. This part of proceeding chiefly based on the testimony made by witnesses in open court. Parties shall have adequate opportunity to show, in course of summing up their respective cases, any flaw between the evidence adduced and the charges.”

31. That it is submitted that each of the Defence petitions to the Tribunal and each of the Decisions made by the Tribunal may have been adversely affected by the former Chairman’s lack of independence and impartiality, and but for his role, may have been decided differently. Undoubtedly the trial would have proceeded very differently had defence rights been respected to the degree required by international standards. It would be an abuse of process to continue the trial regardless of the implications of the influences by the Former Chairman, and to do so would amount to a miscarriage of justice.

32. It is stated that the matters discussed between the Former Chairman and Dr. Ziauddin went far beyond what could ever be considered acceptable, even if it had been given in a transparent manner through appropriate procedure. In fact, the discussions provide clear evidence of judicial bias of the Former Chairman that has vitiated the trial.

33. It is submitted that it is evident from the skype communications that the Former Chairman, through his involvement and discussions with Dr. Ziauddin on matters pertaining to the proceedings (including with regard to members of the Prosecution and their work), had acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures, and that as a result the entire proceedings have been vitiated. These communications reveal that the integrity of the proceedings has been irreparably undermined.

34. That this is particularly clear from a Skype communication dated 14 October 2012, in which the former Chairman and Dr. Ziauddin engage in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible given the profile of the Accused.

35. That it is submitted that notwithstanding the exposure of the skype conversations and emails, the trial against the Accused-Petitioner has been conducted with scant regard for due process and the rights of the Accused-Petitioner:

Denial of right to cross-examine: a. That it is stated that the Former Chairman denied the Defence Counsel the opportunity to cross-examine on more than 200 out of the 276 prosecution exhibited documents which has seriously prejudiced the Accused Petitioner as he has not been afforded the chance to challenge the evidence adduced against him.

b. The cross-examination of the Investigation Officer and other prosecution witnesses were severely restricted in breach of the right of the Accused/Petitioner to examine witnesses against him under Article 14(3)(e) ICCPR.

c. Though the Prosecution submitted more than 4000 pages documents before the Tribunal before commencement of the trial, they served only 400 pages documents upon the Accused violating section 16(2) of the 1973 Act. The Accused-Petitioner filed several applications for the service of copies of these documents. However, the applications were rejected without valid reason.

d. Due to the proviso inserted in Rule 18(4), following instruction of Dr. Ziauddin, the Accused’s right to particulars of prosecution witnesses (“PWs”) was curtailed in the name of witness protection. This was the sole ground rejecting the Defence application for a copy of the investigation report. The Defence Counsel were unable to cross-examine the PWs effectively due to the absence of their particulars and the investigation report. There is no trial in Bangladesh where an accused is denied copy of the investigation report. This is a example as to how the trial of the Accused was affected by the Former Chairman’s communication with Dr. Ziauddin.

Denial of right to answer charges: e. Though section 17(1) of the 1973 Act empowered the Accused/Petitioner to explain the charges against him,the Former Chairman did not allow Defence Counsel to adequately exercise this right of the Accused. It may be recalled that at the time of framing charge the accused wanted to say something. But at that time he was asked only to plead ‘guilty’ or ‘not guilty’. The Former Chairman assured him that he would be given the chance to explain the charges later on. At the close of the prosecution case, the Accused again wanted to explain his position vis-à-vis the charges and prosecution evidence. Again, he was not allowed to do so but was assured that he would get the chance at the close of the Defence case. However, after the close of the Defence case the Accused was denied the opportunity to give his explanation. On 5th December 2012 the Former Chairman passed an order saying that the Accused has already availed the right under section 17(1) at the time of framing charge. It may be noted here that the other two members of the Tribunal were not present at the time of framing charge and as such had to solely rely on the Former Chairman on this issue.

f. On 5th November 2012 Mr. Shukhoronjon Bali, who came to the Tribunal as a defence witness, was abducted by the law enforcement agencies from the Tribunal premises, but the Former Chairman and the Tribunal did not take any steps to secure his release.

g. The Former Chairman allowed the prosecution applications under section 19(2) of the 1973 Act to receive in evidence the alleged statements of 16 witnesses holding that those witnesses were unavailable relying upon the reports of the Investigation Officer dated 17.03.2012 and 20.03.2012. He did not allow the Defence Counsel to cross-examine the Investigation Officer on those two reports. The Defence filed safe house documents (Attendance Registers, Food Registers and General Diary Book of the Safe House) to show that those witnesses were available and some of them were brought to the witness Safe House in Dhaka. It was specifically alleged by the Defence that these witnesses were not willing to give false testimony against the accused and that the Investigation Officer had concocted statements in their names, in an attempt to pervert the course of justice. The Former Chairman did not allow the defence witnesses to exhibit the safe house documents. He also rejected the Defence application to issue summons on the Safe House officials which could have proved that the Investigation Officer was committing fraud upon the Tribunal. As a result of these the Accused was substantially prejudiced as he could not challenge the 19(2) witness statements that are sole bases of Charge No. 1, 2, 3, 4, 12 and 18 against the Accused.

h. The Defence application under Rule 40 to call for the case records of FIR lodged by Mrs. Momtaz Begum, wife of deceased Ibrahim Kutti and sister of deceased Shaheb Ali (concerning charge 8 and 13), cases filed by PW 1 and 6 (charge 7, 8, 10 and 11) and other relevant documents were rejected without affording any reasons.

36. In view of the above, it is submitted that the Tribunal headed by the former Chairman conducted the trial of the Accused in an unfair manner resulting in a gross miscarriage of justice. Other issues which have prejudiced the Accused-Petitioner include, but are not limited to, a lack of time for the Defence to prepare its case, the failure by the Prosecution to disclose evidence, the denial of time and/or unfettered access to Defence counsel to the Accused-Petitioner to receive privileged instructions, the denial of an independent health assessment and a failure to take into account the health and fitness of the Accused to stand trial.

37. It is therefore submitted the above examples of the disregard for fair trial rights and due process will not be remedied simply by a change in the judicial panel. It is submitted that the Impugned Order has been passed without considering the above prejudice to the Accused and hence the Impugned Order is liable to be reviewed in the interests of justice.

Evidence Produced Before the Tribunal:
38. The Tribunal held in the Impugned Order that the final decision of the Tribunal would not be merely based on the charge framed and the Tribunal would evaluate the evidences to arrive at a decision. According to the Tribunal the hacked Skype and email communications would not have any effect in the judgment. The Tribunal held as follows:

“Final decision or verdict in no way shall be based merely on the charges framed. Evidence adduced is to be evaluated only for arriving at a decision as to how far the prosecution has been able to establish charges. In the process of such task of evaluation of evidence before us the alleged illegally hacked email communications and illegally obtained skype conversations shall in no way keep any impact causing prejudice to either party.”

39. It has been stated above that due to the prejudicial conduct of the Former Chairman the Defence Counsel were substantially restricted in cross-examining the prosecution witnesses, challenging prosecution documents, calling defence witnesses and exhibiting relevant defence documents. As a result, the evidence before the Hon’ble Tribunal is neither complete nor sufficiently challenged by the Defence. This is a clear abuse of process and offends all internationally recognised principles of fairness, including Article 14 of the ICCPR.

40. It may be recalled that the Prosecution was allowed more than nine months time from 7th December 2011 to 13th August 2012 for the 28 prosecution witnesses. Though the Prosecution listed 138 witnesses they could not produce more than 28 during this period. The number of prosecution witnesses was never reduced by the Tribunal. On the other hand, the Defence case was forced to close in one month and 20 days from 2nd September 2012 to 23rd October after recording the depositions of only 17 defence witnesses. The Accused/Petitioner was not allowed sufficient time to call his listed 46 witnesses limiting his ability to challenge the prosecution case against him. This is contrary to the right to examine witnesses on his behalf under the same conditions as those against him, under Article 14(3)(e) of the ICCPR.

41. In these circumstances it is therefore submitted that restrictions on the number of defence witnesses coupled with the prejudice inflicted by not being permitted to adequately challenge prosecution witnesses substantially impairs the Hon’ble Tribunal’s ability to reach a fair verdict.

42. The skype and email communications have revealed the conspiracy of the Former Chairman to limit the ability of the Accused to challenge the prosecution case. As such the Tribunal incorrectly held that in the process of ‘evaluation of the evidence before us the alleged illegally hacked email communications and illegally obtained skype conversations shall in no way keep any impact causing prejudice to either party’. As such the impugned order is liable to be reviewed in the interests of justice.

Inherent Power of the Tribunal to Order for Recall or Retrial:
43. That in the Impugned Order the Hon’ble Tribunal held that there is no express provision to hold retrial or recall any order of the Tribunal and there is no reason to invoke inherent power of the Tribunal under Rules 46A since there is express provision in the 1973 Act, i.e. section 6(6), which provides that the Tribunal may proceed from the stage of the case from where the change in the membership of the Tribunal took place.

44. It is respectfully submitted that the above observation of the Hon’ble Tribunal is not correct. According to Rule 46(A) of the Rules of Procedure, the Tribunal has the inherent power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process.

45. Section 6(6) of 1973 Act provides that “A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.”

46. It is submitted that the words ‘merely by reason’ in section 6(6) clearly indicates that in normal course of events if any member of the tribunal is changed or absent, the remaining members are not bound to recall and rehear the witnesses already recorded in presence of the previous member, e.g. where a judge resigns on health grounds. But in the present case the Former Chairman resigned accepting his liability of unethical conduct throughout the trial. The conversations went so far as to reveal that the Former Chairman and Dr Ziauddin had started drafting a conviction judgment for the Accused even before the close of the Defence case. It is therefore submitted that the post of the former Chairman was not vacated by any ‘mere’ reason The former Chairman resigned under exceptional circumstances. Hence section 6(6) of the 1973 Act does not apply. The Former Chairman’s involvement with Dr. Ziauddin in this case has contaminated the whole process and hence a full and complete retrial is the only fair solution.

47. It is submitted that the inherent power of the Tribunal under Rule 46A cannot be limited on improper grounds. This Rule empowers the Tribunal to pass any order to meet the ends of justice or to prevent abuse of the process. It is submitted that there is no bar in section 6(6) of the 1973 Act for retrial in exercise of the Tribunal’s inherent power. It is therefore submitted that the Hon’ble Tribunal committed an error of law causing a failure of justice. As such the Impugned Order is liable to be reviewed in the interests of justice.

Expeditious Trial vs. Fair Trial:
48. That in the Impugned Order the Hon’ble Tribunal held that ‘in the interest of expeditious trial it is not necessary to recall any order or witness’.

49. Rule 53 (3) of RoP provides that ‘The Tribunal shall have jurisdiction to regulate the matter of time management as and when deems necessary, for ensuring effective and expeditious trial.’ On the other hand section 6(2A) of the 1973 Act provides that ‘The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.’ It is therefore submitted that The Tribunal’s primary duty is to ensure a fair trial guaranteed under section 6(2A) of the 1973 Act. It is submitted that expediency must never take precedence over fairness.

Disowning Charge Framing Order by Remaining Members:
50. That the Hon’ble Tribunal rejected the Application in the Impugned Order holding that ‘the Former Chairman alone did not form the Tribunal itself’ and ‘the order of framing charge has been passed by three judges. Apart from the former chairman, rest two judges, i.e. majority judges did not disown the said order’. The Tribunal held that for this reason the charge framing order ‘stands good for every purpose’.

51. It is submitted that email communications between Dr. Ziauddin and the Former Chairman show that the Order of the Tribunal framing charges against the Accused was in fact drafted by Dr. Ziauddin and emailed to Mr. Justice Huq the evening before it was announced in open court on 3rd October 2011 by the Former Chairman. (Annexure – E series of the Application). In an email dated 2nd October 2011 Dr. Ziauddin sent the Former Chairman a document titled ‘20111002-Caseno1ChargesJV.doc’ containing the charge framing order to be delivered in this case against the Accused. In the text of the email, Dr. Ziauddin stated that ‘we are now suggesting to consider use of ‘crime of persecution’ on any of four grounds instead of ‘inhuman acts’ for arson, burning, looting.’ On the next day i.e. on 3rd October 2011 ICT-1 passed the same charge framing order sent by Dr. Ziauddin. A comparison of the draft order sent by Dr. Ziauddin and the charge framing order delivered by the Tribunal clearly shows that the Accused was charged for Crimes Against Humanity and Genocide according to the dictates of Dr. Ziauddin. Since the charge framing order has not been drafted by the Tribunal but by Dr. Ziauddin, and passed at his behest, the said order is not an order of the Tribunal. As such, the order dated 3rd October 2011, not being an order of the Tribunal is liable to be recalled for ends of justice The proceedings pursuant to such indictment has been vitiated, thereby necessitating a retrial. .

52. In view of the above discussions it is therefore clear that the Impugned Order was not passed in considering relevant facts and circumstances of the cases and hence the same suffers from illegality. As such the Impugned Order should be reviewed in the interests of justice.

Defence Arguments which are not Addressed in the Impugned Order:
53. It is respectfully submitted that the Hon’ble Tribunal did not recognize in the Impugned Order the Defence submission that in international law, including the ICCPR to which Bangladesh is bound and the Rome Treaty, that a breach of an accused’s right to a fair trial would constitute a “miscarriage of justice” and any subsequent conviction should be set aside.

54. The Hon’ble Tribunal did not at all consider the following evidence of Executive interference in the process of the Tribunal that raised serious concern as to the fairness of the proceedings:

(a) During Skype conversation of 27th August 2012, reported in the Daily Amar Desh on 9th December 2012, Mr Justice Huq said that a former Member of Tribunal-1, Mr. Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Mr. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on an earlier evening and had asked him to resign and further that the Law Minister had assured Mr. Zaheer Ahmed of an appointment in the Law Commission.

(b) On 14th October 2012, in the Skype conversation reported in the Daily Amar Desh on 9th December 2012, the former Chairman stated that the Government had gone mad for a judgment and that they are extremely keen to have a judgment delivered by 16th December 2012. Mr. Justice Huq also informed Dr. Ziauddin that he could deliver a judgment in Saydee’s case within December 2012, but not that of Professor Ghulam Azam, which would continue till January-February 2013. He also said that the Government would ‘cool down’ only after a judgment has been delivered. Transcripts of this conversation have also been published in the Economist on 15th December 2012.

(c) In a Skype conversation on 15th October 2012, reported in the Daily Amar Desh on 9th December 2012, former Chairman stated that the State Minister for Law had visited his residence and that he (the State Minister) had asked him to deliver judgment in the case of Professor Ghulam Azam quickly. Mr. Justice Huq also stated that the State Minister had said that a meeting would be arranged of all the judges of the Tribunals in order to ensure that judgment in the case of Professor Ghulam Azam before any other case. Dr. Ziauddin also indicates that a similar message was sent by him to the Law Minister.

(d) A conversation between the former Chairman and Dr. Ziauddin on 1st September 2012 clearly shows that the administrative functionaries of the Tribunal are political appointees. The two men discuss how the new Assistant Registrar, Shawkat had been involved beforehand with ICSF (which has long been campaigning for trial of Jamaat leaders) and that he was considered as reliable by them.

(e) That in view of the statements and submissions made above, it is apparent that the entire process of the Tribunal in the instant case has been tainted by the machinations of the former Chairman, Dr. Ziauddin, a section of the Executive and a section of the Prosecution in seeking to procure a conviction of the Accused. In such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared a mistrial. As such, the Accused Petitioner prays for a full and complete retrial.

55. In skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the Former Chairman is reported to have said that he was hurrying to give judgment against the Accused, Professor Golam Azam and Salauddin Quader Chowdhury to get an early promotion to the Appellate Division of the Supreme Court of Bangladesh.

56. That at the time of hearing of the Application the learned Senior Defence Counsel argued that a person cannot at the same time be advising the Prosecution and the Tribunal. It is submitted that the Hon’ble Tribunal did not give any heed to this submission of the learned Defence Counsel.

57. The learned Senior Defence Counsel also argued that the conduct of the Former Chairman (as is evident from the skype communications) shows that he, Dr. Ziauddin, a section of the Prosecution and a section of the Executive had perpetrated fraud on the Tribunal. Reference was made to various English cases, including Lazarus Estates vs Beasley, to justify the submission that fraud vitiates the entire proceedings. On a query by the Tribunal as to whether the court has the power to recall its orders, it was submitted that the Tribunal has an inherent power to recall all orders procured by fraud. Reference was made to a decision of the Indian Supreme Court in this regard. The Hon’ble Tribunal failed to consider these arguments whilst passing the Impugned Order.

58. That on another query by the Hon’ble Tribunal as to whether there was an express provision in the Act to address the present situation, it was argued by with reference to Wade’s Administrative Law and Maxwell's Interpretation of Statutes that the Legislature never contemplates abuse of power or fraud in the exercise of statutory powers and that safeguards against such abuse/fraud are to be implied in the Act itself. But none of these arguments were addressed in the Impugned Order.

59. It was further argued by another senior Defence Counsel Mr. Moudud Ahmed that according to Article 94(4) of the Constitution ‘... the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.’ It was therefore submitted that the former Chairman is oath bound to uphold the constitution and bound by its Article 94(4). But the recent publications in the Economist and the Daily Amar Desh clearly show that the Former Chairman sacrificed his independence to Dr. Ziauddin in breach of his oath under the Constitution. This point was also not addressed in the Impugned Order.

None of the judges now constituting the trial panel have heard the entirety of the case
60. It is stated that the Hon’ble Tribunal has already suffered the departure of two of the originally appointed judges at crucial times in the case. It is now the position that none of the judges now constituting the trial panel have heard the entirety of the case. Furthermore, the absence of full audio and/or transcript recordings of the proceedings prevents the judges from being able to adequately familiarize themselves with the evidence. It was therefore submitted on behalf of the Defence that this lack of continuity of the judicial panel adds considerable weight to the duty of the Hon’ble Tribunal to order a full and complete retrial on the basis that to continue would constitute an abuse of process.

61. That Sections 6(4) to (6) ICTA permit the replacement of a judge during the trial itself, as well as the continuation of a trial in the absence of a member of the Tribunal. Indeed, the ad hoc international criminal tribunals have permitted the replacement of judges during the trial, and it cannot be said that such a practice is prohibited by international law. However, the Defence emphasizes that it cannot be employed in a manner that would prejudice the rights of an accused. Indeed the statute can never have been meant to deal with a situation where all of the judges have been replaced at various stages during the course of the proceedings, and there is no continuity at all. In other words, sections 6(4) to (6) ICTA do not apply to a situation where the former Chairman has had the judgment prepared for him by an uninvolved third party, has resigned as a consequence of allegations of judicial misconduct and has been purportedly “replaced” by a new judge.

62. That under section 6(4) of the 1973 Act the removal of a judge in the proceedings of a case is limited to strict circumstances particularly where any member ‘dies or is, due to illness or any other reason, unable to continue to perform his functions’. It is submitted that the application of strict circumstances has not been adhered to. The Tribunal in this case originally consisted of Mr. Justice Md. Nizamul Huq (Chairman), Mr. Justice ATM Fazle Kabir and District Judge A K M Zaheer Ahmed. On 25 March 2012 a new chamber was constituted, ICT-2, and Mr. Justice ATM Fazle Kabir was removed from the ICT-1 appointed Chairman of ICT-2. Evidently, Mr. Justice ATM Fazle Kabir was still deemed capable of performing his functions. He was replaced by Mr. Justice Anwarul Haque who could only hear 1 out of 28 prosecution witnesses. On 29th August 2012, Mr. Justice Jahangir Hossain replaced Judge A K M Zaheer Ahmed after close of the prosecution case. As a result Mr. Justice Jahangir did not hear any of the prosecution witnesses.

63. That following the recent “resignation” of the Former Chairman from ICT-1 after both national and international media reports of judicial misconduct stemming from interference in the judicial process by unaffiliated and undeclared third parties, the Chairman of ICT-2, Mr. Justice ATM Fazle Kabir was appointed on 13 December 2012 as the new Chairman of ICT-1. It is respectfully stated that Mr. Justice ATM Fazle Kabir has not taken part in any of the ICT-1 proceedings for the last nine months. He did not hear the most important prosecution witness, the Investigation Officer, who has exhibited almost all the prosecution documents and the deposition continued for about half of the prosecution case. Mr. Justice ATM Fazle Kabir also did not hear any of the 17 Defence Witnesses and the summing up of the Prosecution and Defence case. It is submitted that the principles of a fairness and justice will not be served if the trial in the instant case continues with a presiding judge who has not been involved in or followed the evidence, witness testimony and submissions for the larger part of a case. It is therefore submitted that judges cannot be employed/appointed/transferred/removed in a manner that would prejudice the rights of an accused and that highest standards of fairness are demanded particularly where the cases carry the potential penalty of death.

64. That accordingly, it is submitted that (i) the replacement of judges (in particular the recent appointment of a new Chairman who has missed the vast majority of the proceedings) severely prejudices the Accused-Petitioner, particularly as the case is at an advanced stage and as the new judges would not have heard all the evidence; and (ii) notwithstanding the constitution of the bench, it is submitted that influence of the Former Chairman almost certainly had an adverse influence on proceedings and a prejudicial impact on the Accused-Petitioner, and (iii) but for the Chairman’s role in decisions, the course of the trial may have proceeded very differently. Therefore, it is submit that the instant proceedings have been vitiated and are liable to be declared to be a mistrial.

65. That it is submitted that the Skype communications between Mr. Justice Huq and Dr. Ziauddin show that Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal and as such proceedings of the Tribunal have been tainted and are liable to be declared a mistrial and in such circumstances the only remedy in an order of full and complete retrial for ends of justice.

66. It is submitted that the communications between the former Chairman and Dr. Ziauddin illustrate the lengths in which they with members of the Prosecution and the government would go to in order to secure an expeditious conviction against the Accused. This included, inter alia, liaising with Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. This violates the fundamental right of an accused to be tried by an independent and impartial judiciary, the presumption of innocence and, as well as an accused’s right to present his case and be afforded a fair trial.

67. That it is submitted that the email communications between Mr. Justice Huq and Dr. Ziauddin show that Dr. Ziauddin drafted the order framing charge against the Accused Petitioner which was delivered by the Tribunal on 3rd October 2011, and as such the entire proceedings, including the order of framing charge, have been vitiated and are liable to be declared to have been a mistrial, and in such circumstances, the order of framing charge is liable to be recalled for ends of justice.

68. That it is submitted that there is no prohibition upon the Tribunal under section 6(6) of the 1973 Act to order for a retrial and hence the Impugned Order suffers from illegality and the only remedy is to order for a full and complete retrial after reviewing the impugned order.

69. For the abovementioned reasons the Accused-Petitioner prays that the Tribunal sees fit to expunge the unfairness rendered to the Accused and review the impugned order.

70. Finally it is important to quote the final remarks of The Economist (Print edition dated 15th December 2012, Annexure D of the Application) that believed the hacked materials and concluded that “These concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.”

Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to review the Order dated 03rd January 2013, and to meet the ends of justice disclose the identity and opinion of its I.T. Expert and pass any further order(s) as it may deem fit and proper.

Today is fixed for passing final Order on the contempt petition against 3 defence counsels, namely Mr. Tajul Islam, Mr. Mizanul Islam and Mr. Tanvir Ahmed Al-Amin. Mr. Moudud Ahmed, the learned counsel appearing on behalf of the accused petitioner submits that all 3 lawyers are practicing lawyers of the Tribunal. Some of them are practicing from the very beginning of the constitution of the Tribunal. Mr. Moudud Ahmed further submits that by the comment of some of the counsels the Tribunal may have been heart. These contemnors have prayed for unconditional apology so that the contempt charge and the bar on Mr. Tajul Islam may be withdrawn.

Mr. Ziad Al Malum submits that by the comment of the defence counsels the dignity of the Tribunal has been lowered. It should be taken seriously but it is the discretion of the Tribunal whether to grant apology or not.

We have heard both the prosecution and defence on the contempt cases.

Accordingly concerning all aspects we are inclined to grant apology. The counsels are exonerated from the contempt charge and the bar on Mr. Tajul Islam is hereby withdrawn. But we warn Mr. Tajul Islam expecting that he will maintain decorum of the court in future.

1. Application for recall of the Prosecution Witnesses (PW) No. 28 and the Defence Witness No 13 under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010.

2. An application under Rule 40 of the Rules of Procedure 2009 read with section 10(1)(h) of the International Crimes (Tribunal) Act 1973 for production of documents.

3. An application to allow the defence counsels to inspect all the Processes/summons issued to the Prosecution Witnesses.

4. An application to allow the accused petitioner to explain the charges under section 17(1) of the International Crimes (Tribunal) Act 1973 read with section 11(2) of the 1973 Act. (2nd App)

5. Application for issuance of summons upon the persons related to the Witness Safe House listed in this application and direct them to attend and testify as Defence Witnesses under section 11(a) of the 1973 Act read with Rule 48 and 46A of the Rules of Procedure

6. An application to extend time for defence summing up

The chairman said that amongst these 6 applications, 5 of them have already been disposed off earlier. The other petition praying for extension of time for defence arguments is premature as the defence has not yet started their argument. As per rule 26 (4) all the 6 applications are rejected.

Mizanul Islam, the defense lawyer argued that 3 of these are new applications, and the other 3 applications have new grounds. He said that the defense wanted to file a review and would like to have a certified copy of this order.

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.